In Bautista v. PR Gramercy Square Condominium et al, No. 21-cv-11093 (ER), 2022 WL 17156628 (S.D.N.Y. Nov. 22, 2022), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of race-based discrimination (termination) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law.
From the decision:
Bautista’s discrimination claims are analyzed under the three-step burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case by showing that: (1) the plaintiff is a member of a protected class, (2) he was qualified for employment in the position, (3) despite qualifications, he suffered an adverse employment action, and (4) that the adverse action occurred under circumstances giving rise to the inference that the action was motivated by discriminatory animus. McDonnell Douglas, 411 U.S. at 802; Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981). Assuming this burden is met, the burden of production shifts to the defendant to proffer a “legitimate, non-discriminatory” reason for the adverse action. Burdine, 450 U.S. 248, 255 (1981). If this showing is made, the ultimate burden to establish by a preponderance of the evidence that the defendant was motivated by discriminatory animus shifts to the plaintiff. McDonnell Douglas Corp., 411 U.S. at 792.
Here, the parties dispute only whether the alleged facts give rise to an inference of discrimination. At the pleading stage, the plaintiff bears only a “minimal burden of showing facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015). This inference “can arise from circumstances including … the employer’s criticism of the plaintiff’s performance in ethically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.” Similarly, “an inference of discrimination also arises when an employer replaces a terminated or demoted employee with an individual outside of the employee’s protected class.” Failure to allege disparate treatment through the identification of comparators is not fatal to a discrimination claim. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). This is true particularly in scenarios where the failure to identify comparators results, not from inadequate pleading on the part of the plaintiff, but rather from the simple fact that there are no employees who are similarly situated to the plaintiff.
In the present case, the only other alleged doormen or porters who worked with Bautista prior to his termination were also people of color, and thus their experiences could not be used to establish differential treatment, through no fault of Bautista. In cases of this nature, the Second Circuit has held that “the plaintiff should be able to create an inference of discrimination by other means.” And indeed, Bautista has.
An inference of discrimination can arise when a terminated employee is replaced by an individual outside of the employee’s protected class. Littlejohn, 795 F.3d at 312–13; Carlton v. Mystic Tranp., Inc., 202 F.3d 129, 135 (2d Cir. 2000); de la Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996). Bautista alleges that all new positions were filled with employees of Albanian ancestry/national origin, and none were filled with people of color. The basis for these allegations is also described in the SAC, as Bautista alleges he was informed of the identity of newly hired employees by a co-worker, thus satisfying the pleading requirements.
Evidence of an employer seeking to cover up motivations for an employment decision can also create an inference of discriminatory intent. Cook, 69 F.3d at 1239. Here, Bautista alleges that Gjeci covered up the reasoning behind his termination. According to the SAC, Gjeci told Bautista that higher management decided to terminate him; but higher management allegedly terminated Bautista because Gjeci told them that Bautista’s performance was poor. Bautista claims never to have received formal performance reviews or warnings, and similarly alleges that he received frequent verbal praise of his work by his prior supervisor.
Finally, although this Circuit in McCarthy v. New York City Tech. College cautioned against “attributing much if any significance to the fact that another member of the protected class was discharged along with the plaintiff,” that case involved only a single other employee discharge. McCarthy v. New York City Tech. College, 202 F.3d 161, 382 (2d Cir. 2001). Here, Bautista alleges that at least three employees within his protected class were discharged from Gramercy Square Condominiums, and that one additional protected employee left presumably because of their experience of racial animosity.
In Zimmerman, an employer tried to fire two of the three members of a protected class and replace them with individuals outside of the class. Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 383 (2d Cir. 2001). Ultimately, the Second Circuit found that weight should be given to this fact in favor of showing an inference of discriminatory intent on the part of the employer, and decided that the jury would have been entitled to draw an inference of discrimination in the case. Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 383 (2d Cir. 2001).
Here, as in Zimmerman, the number of individuals of color who were discharged, and their subsequent replacement with white employees, is higher, suggesting a pattern of firing and subsequent hires that creates at least a slight inference of discriminatory intent.
The court thus concluded, based on the totality of the allegations, that plaintiff met his burden to establish an inference of discriminatory intent, and denied the motions to dismiss plaintiff’s employment discrimination claims.